LONGMONT -- The car crash last week that injured a pregnant 27-year-old Longmont woman and caused her to lose her baby has prompted visceral reactions from the community, and many have demanded more severe punishments for Gary Sheats, the man accused of driving drunk and causing the wreck.

The July 5 wreck left Heather Surovik badly injured. She lost a baby boy, Brady Paul, due to be born within days. Passenger Terry Koester, 48, Surovik's mother, was seriously injured, and Surovik's 5-year-old son was uninjured.

Garnett

A police report notes that a doctor at Longmont United Hospital told police the night of the wreck that Surovik suffered "intracranial hemorrhage" and "intrauterine fetal demise," indicating the baby died before birth. But the cause of death won't be known until Boulder County Coroner Emma Hall completes her investigation into the cause and manner. If the baby died before birth, then under Colorado law, the Boulder County District Attorney's Office cannot impose a vehicular homicide charge.

Boulder District Attorney Stan Garnett said he has fielded many phone calls and emails from residents frustrated with the nuances that keep his office from filing a vehicular homicide charge against Sheats, although most people have been understanding that he cannot charge based on the emotion of a case.

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"I am bound by what Colorado law is, not what people wish it was, and if they want to change it they should talk to their state representative or senator and I would be happy to help," Garnett said.

The Rev. Don Veazey, pastor of Tri-Town Baptist Church in Frederick, has been speaking on behalf of Surovik's family. He acknowledged the situation has affected many people.

"Without a doubt, it definitely has struck some heartstrings for people. It's obvious this is something most people are very adamant about, one way or another," he said.

Joshi

Sheats, 52, is in Boulder County Jail on $100,000 bond. He has been charged with vehicular assault, two counts of leaving the scene of an accident, two counts of driving under the influence, one count of DUI on a third or subsequent offense and one count of careless driving.

Legal considerations

Boulder County prosecutors who charged Sheats did not have many options in the case.

Without proof that the Surovik baby lived outside the womb, prosecutors were left with a vehicular assault charge because the unborn baby's death is legally regarded as an injury to Heather Surovik.

The rule stems from a 2009 Colorado Court of Appeals ruling on its review of the People vs. Logan Lester Lage out of Mesa County. In that case, Lage led police on a high-speed chase and crossed into oncoming traffic, striking head-on a car driven by a woman who was 81/2 months pregnant. The baby was born via Cesarean section and lived for one hour and nine minutes, according to the case summary. It was concluded that the baby died because of injuries suffered in the crash.

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In the Lage case, the trial court allowed the dismissal of a DUI vehicular homicide count, among other felony charges, in the death of the baby based on a defense argument that an unborn baby was not a person under the law. The appeals court later ruled that dismissing the vehicular homicide count was an error at least because the baby was born and lived outside of the womb. The court concluded that under the specific statute for the charge, the law would apply to "a fetus who is injured while in the womb, is subsequently born and lived outside the womb, and then died from injuries sustained."

The charge distinction is important because homicide and child abuse charges may define "person" differently or not at all.

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For instance, in the same case, the trial court dismissed a count of first-degree murder of the baby with extreme indifference and the appeals court upheld the dismissal because the specific charge in the law requires that "the victim is a human being; (2) the victim has already been born; (3) the victim is still alive" when the crime is committed.

Legislative efforts

In the last legislative session, two fetal homicide bills were introduced, though neither passed.

Senate Bill 125 would have created a new article in the criminal code for offenses against pregnant women and their unborn children. It was killed in the Senate Judiciary Committee.

House Bill 1130 would have allowed for a second charge to be filed if a crime committed against a pregnant woman caused injury or death to her unborn baby.

The bill's sponsor, Rep. Janak Joshi, R-Colorado Springs, said he introduced the measure because district attorneys had expressed frustration that they would be unable to prosecute a person for hurting or killing an unborn baby. The bill made an exemption for medical care for which the mother provided consent. Joshi insisted it would not criminalize legal abortions.

"This bill is to go after the criminals who are right now basically getting away with murder," Joshi said.

The bill passed the House but was struck down in the Senate Judiciary Committee. Joshi said he plans to introduce the same bill in the next session, if elected. He is running against David Rawe from the American ConstitutionParty.

Rep. Claire Levy, D-Boulder, voted against the bill because she said it did not establish a firm point at which a fetus would be considered a human being, and "it seemed to be a backdoor way to establishing separate legal rights for a nonviable fetus." She also criticized the bill's creation of the crime of homicide in a situation where the perpetrator did not show intent.

"I just viewed it as a very sloppy bill that was intended to make a political statement," she said.

Levy did support a bill in the 2011 legislative session that would have added a new crime in a situation like Surovik's. She voted for House Bill 1256, which would have created a crime called "unlawful termination of a pregnancy" for offenses against pregnant women and their unborn children without criminalizing abortion.

"It's very important to find some common ground so that we can recognize that loss in a way that doesn't impinge on reproductive freedoms," Levy said.

Rep. Mark Waller, R-Colorado Springs, introduced the bill after a 27-year-old pregnant woman, Laura Gorham, was struck by a hit-and-run driver in Denver's Stapleton Community in December 2010. The woman, who was 34 weeks pregnant, was injured and her baby died.

At Waller's request, the House Judiciary committee killed the bill following pressure from anti-abortion groups.

In Heather Surovik's case, the controversy surrounding personhood may play only a peripheral role. Colorado voters twice have voted against amending the state Constitution to define an unborn fetus as a person, with all the rights afforded a person. The personhood amendments, which would have given rights to fertilized eggs, were voted down in 2008 and 2010.

Garnett said it is not clear that a constitutional amendment would create a wholesale definition throughout all of the criminal statutes. He said it is likely the Legislature would have to update laws individually to reflect a new definition. He said it would be helpful for district attorneys if the definitions were at least consistent in homicide and child abuse cases, but he does not personally support a personhood amendment.

Garnett, though, is also frustrated that Colorado is among only five states --the others are Maryland, Maine, Rhode Island and Pennsylvania -- that do not have a felony charge for repeat DUI offenders.

He told the Times-Call earlier this week that he would like to see the Legislature adopt a law that would allow a felony charge and prison time for those who continue to draw DUIs.

No easy answer

The American Congress of Obstetricians and Gynecologists, a professional organization with about 56,000 members, does not have a definition for a fetus versus an unborn child. As a medical organization, they use the term fetus up to birth and newborn thereafter, according to a spokeswoman.

For Surovik's pastor, though, it's an issue that's clearly outlined in the Bible. In an email Thursday on the issue, he quotes several passages, including Jeremiah 1:4-5, which reads in part, "Then the word of the LORD came unto me, saying, Before I formed thee in the belly I knew thee."

"Brady, according to his mother and family, was a human being with a living soul. Without question, God knew him, and today Brady is in the arms of Jesus," he wrote.

The taproot issue in this situation is grief and anger, said the Rev. Rick King of Longmont's First Congregational United Church of Christ. Neither the church nor its denomination, the United Church of Christ, takes a hard stance on the issue, King said.

"Whether you label it potential life or a human life in an unborn form, you're still talking about the death of a dream, all the dreams that woman had for that baby, all of the changes her body was going through as a result of the pregnancy," he said. "And I think it's the same kind of grief in one respect as you experience with a miscarriage or a stillbirth, and yet it's also different because the reading public is dealing with anger because of the role of a drunk driver in this crash. I think that the public is trying to deal with its own grief over the loss of this life."

8 year old Sydney and her mother Merideth watch as her brother, 4-year-old Ryan Brennan, adds a stuffed animal to the memorial on the corner where a pregnant woman was struck by a hit-and-run driver in Denver's Stapleton neighborhood. Rep. Mark Waller, R-Colorado Springs, introduced House Bill 1256 after a 27-year-old pregnant woman, Laura Gorham, was struck by a hit-and-run driver in Denver s Stapleton Community in December 2010. The woman, who was 34 weeks pregnant, was injured and her baby died.
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